[Federal Register Volume 60, Number 17 (Thursday, January 26, 1995)]
[Rules and Regulations]
[Pages 5256-5261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1878]
[[Page 5255]]
_______________________________________________________________________
Part II
Tennessee Valley Authority
18 CFR Part 1312
Department of Defense
32 CFR Part 229
Department of Agriculture
Forest Service
36 CFR Part 296
Department of the Interior
Office of the Secretary
43 CFR Part 7
_______________________________________________________________________
Protection of Archaeological Resources; Uniform Regulations; Final Rule
Federal Register / Vol. 60, No. 17 / Thursday, January 26, 1995 /
Rules and Regulations
[[Page 5256]]
TENNESSEE VALLEY AUTHORITY
18 CFR Part 1312
DEPARTMENT OF DEFENSE
32 CFR Part 229
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 296
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 7
RIN 1024-AA51
Protection of Archaeological Resources; Uniform Regulations
AGENCIES: Departments of the Interior, Agriculture, and Defense and
Tennessee Valley Authority.
ACTION: Final rule.
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SUMMARY: This final rule revises the uniform regulations that implement
the Archaeological Resources Protection Act of 1979 (ARPA) to
incorporate the recent amendments. Principally, these changes amend the
description of prohibited acts in the final uniform regulations to
include attempt to excavate, remove, damage, or otherwise alter or
deface archaeological resources, address the lower threshold for felony
violations of ARPA, public awareness programs, archaeological surveys
and schedules, the Secretary of the Interior's report to Congress about
federal archeology, and guidance to Federal land managers about the
disposition of Native American human remains and other ``cultural
items'' as defined by the Native American Graves Protection and
Repatriation Act (NAGPRA).
EFFECTIVE DATE: The final rule becomes effective February 27, 1995.
FOR FURTHER INFORMATION CONTACT: Francis P. McManamon, National Park
Service, Department of the Interior, Washington, D.C., 202-343-4105;
Lars Hanslin, Office of the Solicitor, Department of the Interior,
Washington, D.C., 202-208-7957; Evan I. DeBloois, U.S. Forest Service,
Department of Agriculture, Washington, D.C., 202-205-1754; Peter Walsh,
Assistant Deputy Undersecretary of Defense for Environmental Quality,
Department of Defense, Washington, D.C., 703-604-5753; or Bennett
Graham, Tennessee Valley Authority, Norris, Tennessee, 615-632-1585.
SUPPLEMENTARY INFORMATION:
Background
This final rule revises the uniform regulations that implement the
Archaeological Resources Protection Act of 1979 (ARPA; Pub. L. 96-95,
as amended by Pub. L. 100-555, Pub. L. 100-588; 93 Stat. 721; 102 Stat.
2983; 16 U.S.C. 470aa-mm). It was prepared by representatives of the
Secretaries of the Interior, Agriculture, and Defense, and the Chairman
of the Board of the Tennessee Valley Authority, as directed in section
10(a) of the Act.
The first purpose of ARPA is ``to secure, for the present and
future benefit of the American people, the protection of archaeological
resources and sites which are on public lands and Indian lands''
[section 2(b)]. On November 3, 1988, amendments to ARPA were enacted
which have the purpose ``to improve the protection and management of
archaeological resources'' (Pub. L. 100-555) and ``to strengthen the
enforcement provisions of ARPA'' (Pub. L. 100-588).
Section 10(a) of ARPA requires the Secretaries of the Interior,
Agriculture, and Defense and the Chairman of the Tennessee Valley
Authority, after consultation with other Federal land managers, Indian
Tribes, representatives of concerned State agencies, and after public
notice, to promulgate uniform regulations as may be appropriate to
carry out the purposes of ARPA. The uniform regulations are to be
promulgated after consideration of the provisions of the American
Indian Religious Freedom Act (92 Stat. 469; 42 U.S.C. 1996). The
uniform regulations for ARPA originally were published on January 6,
1984.
The six areas revised by this rulemaking include: (1) Expanding the
description of prohibited acts to include attempts to excavate, remove,
damage, or otherwise alter or deface archaeological resources, (2)
adding the lower threshold provided for felony violations of ARPA, (3)
adding public awareness programs, (4) adding archaeological surveys and
schedules, (5) the Secretary of the Interior's report, and (6)
providing guidance to Federal land managers about the disposition of
Native American human remains and other ``cultural items'', as defined
by NAGPRA [Pub. L. 101-601; 104 Stat. 3050; 25 U.S.C. 3001-13]. These
topics are covered by adding paragraphs to Secs. ____.3, ____.4,
____.7, ____.13, and ____.19; revising Secs. ____.4 and ____.19; and
adding new Secs. ____.20 and ____.21.
(1) Expanding prohibited acts. The prohibited acts section of the
uniform regulations is revised to conform to the recent amendments to
ARPA. Federal land managers can pursue criminal and civil penalties
against persons that attempt to excavate, remove, damage, alter, or
otherwise deface archaeological resources.
(2) Lower felony threshold. Statutory amendments reduced the figure
for distinguishing criminal penalties based upon calculations of damage
to archaeological resources caused through violations of ARPA. The
figure was reduced from $5,000.00 to $500.00. A new paragraph in
Sec. ____.4 restates the criminal penalties section in ARPA as well as
incorporates the lower felony threshold in the uniform rule. This
paragraph was added to the uniform regulations to inform Federal land
managers about the criminal provisions of the Act. Those preparing the
regulations felt that Federal land managers use the regulations, thus,
it was important to restate the penalties section.
(3) Public awareness programs. New Sec. ____.20 identifies the
requirements in ARPA for Federal land managers to establish programs to
increase public awareness about archaeological resource protection.
Federal agencies are already developing public awareness programs. As
examples, the Bureau of Land Management implemented the Heritage
Education Program and the Forest Service developed Passports in Time.
There were numerous other examples of public outreach efforts by field
personnel from the land management agencies. The development of
regulations defining the types of public awareness programs to be used
by Federal land managers was not feasible. Rather, public awareness
programs including volunteerism, formal education, interpretation,
tourism, and others should be part of any archaeological resource
activity and incorporated into other current programs where
appropriate. The Secretary of the Interior will report to Congress
about these programs on behalf of Federal agencies.
(4) Archaeological surveys and schedules. New Sec. ____.21
discusses the requirements in ARPA for the Departments of the Interior,
Agriculture, and Defense and the Tennessee Valley Authority to develop
plans and schedules for surveying archaeological resources to determine
their nature and extent for purposes of agency resource planning. The
surveys should be conducted systematically and cover areas where the
most scientifically valuable archaeological resources are likely to
exist. For example, the surveys may focus on lands where there is
little knowledge of the resource base, on [[Page 5257]] lands that
contain archaeological resources that are vulnerable to vandalism and
looting, or on lands that contain archaeological resources significant
in local, state or regional cultural history. Other Federal land
managing agencies are encouraged to develop such plans and schedules.
(5) The Secretary of the Interior's report. Section ____.19 is
revised to enable the Secretary of the Interior to report
comprehensively to Congress regarding Federal agencies archaeological
activities. This section specifically addresses reporting on Federal
agency public awareness programs, surveys and schedules and systems for
documenting violations of ARPA.
(6) Treatments for Native American human remains and other
``cultural items''. Sections ____.3, ____.7 and ____.13 include
guidance to Federal land managers on treatments for Native American
human remains and other ``cultural items'', as defined by NAGPRA.
Finally, the reference to the U.S. Code is revised in
Sec. ____.1(a) and Sec. ____.3(i) to reflect changes by the amendments
to ARPA.
Public comment was sought for a 30-day period following publication
of Sec. ____.4 of the proposed rules on January, 29, 1990 (55 FR 2848),
and for a 90-day period following publication of the remaining sections
of the proposed rules on September, 11, 1991 (56 FR 46259). Written
comments were received from seven Federal agencies, one State agency,
three Indian councils and associations, one educational institution,
two utility companies and associations, and one private cultural
resources management firm. The authority citation for 43 CFR Part 7 was
addressed in 2 comments, Sec. 7.3 was addressed in 9 comments, Sec. 7.7
was addressed in 9 comments, Sec. 7.13 was addressed in 24 comments,
Sec. 7.19 was addressed in 3 comments, Sec. 7.20 was addressed in 1
comment, and Sec. 7.21 was addressed in 5 comments. The proposed rules
were published immediately prior to the enactment of NAGPRA, and thus,
many of the public comments focused on relationships between ARPA and
NAGPRA.
Many comments were directed at the apparent inconsistencies between
NAGPRA and ARPA regarding notification and consultation with Indian
Tribes as well as the extent of Federal land managers' authority in
making determinations of custody. Other comments were directed at
further defining terms regarding types of land and archaeological
objects. The remaining comments dealt with elaborating on the
implementation and funding of reports, public awareness programs, and
surveys and schedules.
All the comments were considered, and most contributed to some
degree in the rulemaking process. All the comments and the changes made
in response to public comments are discussed below.
Changes in Response to Public Comments
Two commentors noted that Pub. L. 101-601 (NAGPRA) should be
included in the authority citation for 43 CFR Part 7. The authority for
43 CFR Part 7 is directed by Pub. L. 96-95; 93 Stat. 721, as amended;
102 Stat. 2983; 16 U.S.C. 470aa-mm (section 10(a)). Related authorities
are those that ARPA influences, such as the Antiquity Act (16 U.S.C.
432,433), the Archeological and Historic Preservation Act (16 U.S.C.
469, as amended) and the National Historic Preservation Act (16 U.S.C.
470, as amended). The language in NAGPRA refers to the statute and its
regulations but does not affect the implementation of ARPA and is not
cited as a Related Authority. NAGPRA and its implementing regulations
are referred to in the revisions of Secs. ____.3, ____.7 and ____.13.
Section ____.3 Definitions
Two commentors noted that Sec. ____.3(a)(6) of the uniform
regulations, which states that Federal land managers may determine that
particular human remains and directly associated material remains are
to be treated differently from other archaeological resources, is in
direct contradiction with NAGPRA which states that Native American
human remains and graves must be treated differently from
archaeological resources. One commentor noted that the definition of
``Indian lands'' in Sec. ____.3(a)(5)(e) of the uniform regulations is
different from the definition of ``tribal lands'' in NAGPRA, thus
provisions in NAGPRA would cover graves on ``tribal lands'' as defined
in NAGPRA but would not cover graves located on ``Indian lands'' as
defined in the uniform regulations. This same commentor also noted that
the uniform regulations, unlike NAGPRA, do not include: (1) Fee
patented lands within the exterior boundaries of Indian reservations;
(2) lands within dependent Indian communities that may not be in the
boundaries of a reservation; and (3) certain lands administered for the
benefit of Native Hawaiians. Three commentors noted that ``associated
funerary objects'' as defined in NAGPRA should be used rather than the
terms ``directly associated material remains'', ``associated objects'',
and ``funerary objects'' in the uniform regulations. One of these same
commentors also noted that the terms ``unassociated funerary objects'',
``sacred objects'' and ``objects of cultural patrimony'' should be
added to the uniform regulations. Another of these three commentors
above noted that the definition for ``human remains'' should be better
defined in the uniform regulations.
The commentors are correct in observing that the definitions of
certain terms vary between the uniform regulations and NAGPRA. The
terms used in the final rule follow the statutory definitions provided
in ARPA and its amendments. The terms ``associated funerary objects'',
``unassociated funerary objects'', ``sacred objects'', and ``objects of
cultural patrimony'' have particular statutory meaning in NAGPRA but
not in ARPA. ``Material remains'' is defined in ARPA, but not
``associated objects'' or ``funerary objects''. In response to comments
concerning the consistency of this section with NAGPRA, the term
``cultural items'', as defined in NAGPRA, is used in the final rule to
distinguish material remains that are to be treated under NAGPRA and
its implementing regulations.
Section ____.7 Notification to Indian Tribes of Possible Harm to, or
Destruction of, Sites on Public Lands Having Religious or Cultural
Importance
One commentor noted that Sec. ____.7(b)(4) of the uniform
regulations is inconsistent with NAGPRA Sec. 3(c) which requires
consultation and consent from Indian tribes prior to the issuance of an
ARPA permit, not after one has already been issued. Two commentors
stated that it is redundant to consult with tribes after an ARPA permit
has already been issued, especially if it is to comply with NAGPRA. One
of these commentors stated that amendments to an ARPA permit are
acceptable only under certain provisions, while the other commentor
stated it was inappropriate altogether to develop compliance procedures
through another act when the implementing regulations for NAGPRA have
not been developed. One commentor noted that the requirement for notice
to Indian tribes being at the discretion of the Federal land manager is
not sufficient to carry out NAGPRA. One commentor noted that the
uniform regulations should require notification to Indian tribes when
aboriginal land is involved regardless of a finding of potential harm
or destruction of religious or cultural [[Page 5258]] sites. This same
commentor also noted that the uniform regulations should reflect
requirements in NAGPRA that consultation, and not just notification, is
required before excavation of imbedded materials.
Two commentors directed their comments at setting conditions for
consultation. One of these commentors stated that it should identify
protocols to be followed when special notice is necessary including
specification of time periods for completion of a tribe's response
following a notification. The other commentor stated that minimum
standards should be established setting the ``extent of circumstances''
that call for optional circumstances. One commentor inquired how the
uniform regulations apply to non-Native American human remains and if
there were any provisions for notification to non-Native American
groups.
Section ____.7(a) provides procedures for notification to Indian
tribes and consultation 30 days prior to the issuance of a permit.
Section ____.7(b) provides for Federal land managers and Indian tribes
to cooperate in advance to identify sites of religious or cultural
importance to prevent harm to them. Existing rules allow for the
suspension or revocation of permits for management purposes, such as to
insure consistency with NAGPRA. Also, ARPA requires consent from tribes
when the permit applies to Indian lands. ARPA stipulates that Federal
land managers shall seek to identify all Indian tribes having
aboriginal or historic ties to the lands under their agency's
jurisdiction. This section of the uniform regulations applies to sites
on public lands having religious or cultural importance for Indian
tribes. For cases involving non-Native Americans, the Federal land
manager may consult with any concerned groups prior to permit issuance.
In response to comments concerning the consistency of this section with
NAGPRA, the final rule was modified to clarify the relationship of this
section with NAGPRA.
Section ____.13 Custody of Archaeological Resources
Two commentors stated that Sec. ____.13(a) should be amended to
read that archaeological resources that are excavated or removed from
pubic lands will remain the property of the United States ``except when
lineal descendants have rights of ownership'' or ``except in those
instances where NAGPRA recognizes ownership or control in a lineal
descendent or Indian tribe'' in order to conform with NAGPRA. One of
these same commentors noted that the Federal land manager is given too
much power to decide the custody of items when no descendants can be
identified and that NAGPRA has a resolution process, whereas, ARPA does
not. This commentor also said that Federal land managers should be
charged with identifying all aboriginal lands within their jurisdiction
that meet the standards in NAGPRA and be instructed to defer decisions
regarding custody to the appropriate tribe. Two commentors noted that
Sec. ____.13(e) should read that the Federal land manager shall
determine, not may determine, that human remains and directly
associated material remains need not be preserved and maintained in a
scientific or educational institution. Seven commentors noted that the
procedures for reaching a determination in Sec. ____.13(e)(2) should be
consistent with NAGPRA. One of these commentors noted that allowing
Federal land managers alone to consider religious and cultural
importance is inconsistent with NAGPRA, which reserves this right to
Native American individuals and groups. Another of these commentors
stated that while the uniform regulations allow Federal land managers
the right to consider remains as a ``source of information about the
past'', NAGPRA does not give this consideration. Another of these
commentors stated that Sec. ____.13(e)(2), in general, sets the context
for allowing the study and curation of remains to be more important
than repatriation. Three of these commentors stated that it needs to
define conditions for applicability with regard to the disposition of
human remains. Regarding Sec. ____.13(e)(4), one commentor noted that
NAGPRA provides the basis for reaching a determination of custody.
Three commentors noted that the cancellation of the agreement by the
Federal land manager over the tribe's failure to comply is
contradictory to NAGPRA. Two commentors stated that there is a written
agreement provision implied on activity pursuant to Section 106 of the
National Historic Preservation Act, and that they were opposed to any
process involving the Advisory Council or the SHPO. Another comment,
regarding the same topic, suggested that written agreements should not
rule out face-to-face communications. Two commentors stated that
Sec. ____.13(e)(4) appears to allow Federal land managers to impose
``appropriate terms and conditions'' to dictate the manner of
repatriation, when tribal religious practices should govern, instead,
and that this would be contrary to Section 3 of NAGPRA. Regarding
Sec. ____.13(e)(5), one commentor stated that it needs to explain how,
when, and who determines the custody of ``remains'' during a criminal
investigation. One commentor stated that Sec. ____.13 needs to include
procedures for custody of resources on Indian lands, not just public
lands.
Federal land managers are ultimately responsible for archaeological
resources under their agencies' jurisdictions. When Native American
human remains and other ``cultural items'', as defined by NAGPRA, are
returned to lineal descendants or culturally affiliated Indian tribes,
then these items are no longer the responsibility of the United States.
The claimants have complete authority over their future treatment.
Archaeological resources excavated or removed from Indian lands remain
the property of the Indian or Indian tribe having rights of ownership
over such resources, and who, as stated in ARPA, determine the
appropriate treatment. Under ARPA the Federal land manager will
identify tribes with historic or aboriginal ties to the lands under the
Federal land manager's jurisdiction and through consultation will
determine if there are religious or cultural sites which could be
harmed.
The commentors are correct in noting that the term ``when
applicable'' is too general to provide useful guidance for the Federal
land manager to consider the manner of disposition of the remains as
proposed by the Indian tribe, group or individual. ARPA also is
intended to enhance the protection of archaeological resources that are
a source of information about the past. With regard to the custody of
material remains during a criminal investigation, the status of
archaeological resources is determined through law enforcement. Only
when archaeological resources that are secured as evidence in a civil
or criminal proceeding have been released officially by law
enforcement, may they then be considered for treatment under this
section. As for criminal proceedings involving Native American human
remains and other ``cultural items'', as defined by NAGPRA, the Federal
land manager is referred to the requirements in NAGPRA and its
implementing regulations.
In response to the comments, the final rule includes guidance to
Federal land managers about treatments of Native American human remains
and other ``cultural items'', as defined by NAGPRA.
Section____.13(e)(1)-(4) was deleted from the final rule. The Federal
land manager is referred to the requirements in NAGPRA and its
implementing regulations. [[Page 5259]]
Section ____.19 Report
One commentor noted that a statistics-keeping requirement is the
``last thing Federal land managers need or want.'' Another commentor
noted that ``available information'', in Sec. ____.19(c), should be
clarified with regard to information from active criminal cases. This
same commentor also noted that regulations should be written by
resource specialists, law enforcement personnel, and interpreters
regarding the development of systems to report on violations and public
awareness, and that any system so developed should be centralized and
computerized.
The statutory requirements of ARPA require a report to Congress on
the progress and effectiveness of public awareness programs and the
surveys and schedules. Available information includes that which is
available for public disclosure. If this information is part of active
criminal investigations, then this information should be withheld until
it can be released. The submitted information will be presented as part
of the Secretary's Report to Congress. No modifications were made to
the final rule based on these comments.
Section ____.20 Public Awareness Programs
One commentor noted that financial expenditures in this area will
be wasted if NAGPRA is not taken into consideration since subsequent
regulations could make this provision obsolete.
ARPA requires Federal land managers to establish public awareness
programs. These programs can be very beneficial to furthering the
protection of Native American graves. No modifications were made to the
final rule based on these comments.
Section ____.21 /Surveys and Schedules
One commentor noted that this survey provision runs the risk of
legitimizing unreliable ``probability models'' and that the discipline
of archaeology is not in a position to identify and ``systematically
cover areas where most scientific resources are likely to exist.'' This
same commentor stated that the ``scientifically valuable'' criterion,
in Sec. ____.21(b), neglects other equally important cultural values
and that the definition of ``scientifically valuable'' is subject to
many changes over time. Two commentors noted that timetables or
requirements should be set forth for developing and implementing survey
plans since any agency can develop a schedule, but the need is to
demonstrate agency commitments in time, funding and personnel. Another
commentor, along the same lines, suggested that Congress should either
set aside funds to pay for surveys or some other means for funding
planned surveys should be developed.
This section promotes a comprehensive management program for the
protection of archaeological resources. The intent is to direct
agencies to learn more about the archaeological resource base using
systematic approaches that can lead to better protection strategies.
Scientifically valuable areas do not exclude sacred areas but focus on
resources that will produce valuable information about regional
cultural histories. Each agency is given the flexibility to determine
plans for work based on funding and personnel levels that vary
annually. The results and progress of such work are provided in the
Secretary's Report to Congress along with appropriate recommendations.
Statement of Effects
This rule was not subject to Office of Management and Budget review
under Executive Order 12866. The Department of the Interior certifies
that this document will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et. seq.). These determinations are based on findings
that the rulemaking is directed toward Federal resource management,
with no economic impact on the public.
Paperwork Reduction Act
This rule does not contain information collection requirements
which require approval by the Office of Management and Budget under 44
U.S.C. 3501 et seq.
List of Subjects
18 CFR Part 1312
Administrative practice and procedure, Historic preservation,
Indians--lands, Penalties, Public lands.
32 CFR Part 229
Administrative practice and procedure, Historic preservation,
Indians--lands, Penalties, Public lands.
36 CFR Part 296
Administrative practice and procedure, Historic preservation,
Indians--lands, Penalties, Public lands.
43 CFR Part 7
Administrative practice and procedure, Historic preservation,
Indians--lands, Penalties, Public lands.
Amendment
The Departments of the Interior, Agriculture, and Defense and the
Tennessee Valley Authority are codifying identical amendments to the
uniform regulations for protection of archaeological resources in their
respective titles of the Code of Federal Regulations. Since the
regulations are identical, the text of the amendments is set out only
once at the end of this document.
Adoption of the Common Rule
The agency specific preambles adopting the text of the common rule
appear below.
Tennessee Valley Authority
18 CFR Part 1312
As set forth in the common preamble, 18 CFR Part 1312 is amended as
follows:
PART 1312--PROTECTION OF ARCHAEOLOGICAL RESOURCES: UNIFORM
REGULATIONS
1. The authority citation for 18 CFR Part 1312 is revised to read
as follows:
Authority: Pub. L. 96-95, 93 Stat. 721, as amended, 102 Stat.
2983 (16 U.S.C. 470aa-mm) (Sec. 10(a). Related Authority: Pub. L.
59-209, 34 Stat. 225 (16 U.S.C. 432, 433); Pub. L. 86-523, 74 Stat.
220, 221 (16 U.S.C. 469), as amended, 88 Stat. 174 (1974); Pub. L.
89-665, 80 Stat. 915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204
(1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. 3467
(1978), 94 Stat. 2987 (1980); Pub. L. 95-341, 92 Stat. 469 (42
U.S.C. 1996).
2. In Sec. 1312.1, the first sentence in paragraph (a) is revised
to read as set forth at the end of this document.
3. In Sec. 1312.3, paragraph (a)(6) is added and paragraph (i) is
revised to read as set forth at the end of this document.
4. In Sec. 1312.4, the section heading and paragraph (a) are
revised and paragraph (c) is added to read as set forth at the end of
this document.
5. In Sec. 1312.7, paragraph (b)(4) is added to read as set forth
at the end of this document.
6. In Sec. 1312.13, paragraph (e) is added to read as set forth at
the end of this document.
7. Section 1312.19 is revised to read as set forth at the end of
this document.
8. New Secs. 1312.20 and 1312.21 are added to read as set forth at
the end of this document.
Craven Crowell,
Chairman, Tennessee Valley Authority.
Department of Defense
32 CFR Part 229
As set forth in the common preamble, 32 CFR Part 229 is amended as
follows: [[Page 5260]]
PART 229--PROTECTION OF ARCHAEOLOGICAL RESOURCES: UNIFORM
REGULATIONS
1. The authority citation for 32 CFR Part 229 is revised to read as
follows:
Authority: Pub. L. 96-95, 93 Stat. 721, as amended, 102 Stat.
2983 (16 U.S.C. 470aa-mm) (Sec. 10(a). Related Authority: Pub. L.
59-209, 34 Stat. 225 (16 U.S.C. 432, 433); Pub. L. 86-523, 74 Stat.
220, 221 (16 U.S.C. 469), as amended, 88 Stat. 174 (1974); Pub. L.
89-665, 80 Stat. 915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204
(1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. 3467
(1978), 94 Stat. 2987 (1980); Pub. L. 95-341, 92 Stat. 469 (42
U.S.C. 1996).
2. In Sec. 229.1, the first sentence in paragraph (a) is revised to
read as set forth at the end of this document.
3. In Sec. 229.3, paragraph (a)(6) is added and paragraph (i) is
revised to read as set forth at the end of this document.
4. In Sec. 229.4, the section heading and paragraph (a) are revised
and paragraph (c) is added to read as set forth at the end of this
document.
5. In Sec. 229.7, paragraph (b)(4) is added to read as set forth at
the end of this document.
6. In Sec. 229.13, paragraph (e) is added to read as set forth at
the end of this document.
7. Section 229.19 is revised to read as set forth at the end of
this document.
8. New Secs. 229.20 and 229.21 are added to read as set forth at
the end of this document.
Dated: August 22, 1994.
Linda M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
Department of Agriculture
Forest Service
36 CFR Part 296
As set forth in the common preamble, 36 CFR Part 296 is amended as
follows:
PART 296--PROTECTION OF ARCHAEOLOGICAL RESOURCES: UNIFORM
REGULATIONS
1. The authority citation for 36 CFR Part 296 is revised to read as
follows:
Authority: Pub. L. 96-95, 93 Stat. 721, as amended, 102 Stat.
2983 (16 U.S.C. 470aa-mm)(Sec. 10(a). Related Authority: Pub. L. 59-
209, 34 Stat. 225 (16 U.S.C. 432, 433); Pub. L. 86-523, 74 Stat.
220, 221 (16 U.S.C. 469), as amended, 88 Stat. 174 (1974); Pub. L.
89-665, 80 Stat. 915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204
(1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. 3467
(1978), 94 Stat. 2987 (1980); Pub. L. 95-341, 92 Stat. 469 (42
U.S.C. 1996).
2. In Sec. 296.1, the first sentence in paragraph (a) is revised to
read as set forth at the end of this document.
3. In Sec. 296.3 paragraph (a)(6) is added and paragraph (i) is
revised to read as set forth at the end of this document.
4. In Sec. 296.4, the section heading and paragraph (a) are revised
and paragraph (c) is added to read as set forth at the end of this
document.
5. In Sec. 296.7, paragraph (b)(4) is added to read as set forth at
the end of this document.
6. In Sec. 296.13, paragraph (e) is added to read as set forth at
the end of this document.
7. Section 296.19 is revised to read as set forth at the end of
this document.
8. New Secs. 296.20 and 296.21 are added to read as set forth at
the end of this document.
Adela Backiel,
Deputy Assistant Secretary for Natural Resources and Environment.
Department of the Interior
43 CFR Part 7
As set forth in the common preamble, 43 CFR Part 7 is amended as
follows:
PART 7--PROTECTION OF ARCHAEOLOGICAL RESOURCES
1. The authority citation for 43 CFR Part 7 is revised to read as
follows:
Authority: Pub. L. 96-95, 93 Stat. 721, as amended; 102 Stat.
2983 (16 U.S.C. 470aa-mm) (Sec. 10(a). Related authority: Pub. L.
59-209, 34 Stat. 225 (16 U.S.C. 432,433); Pub. L. 86-523; 74 Stat.
220, 221 (16 U.S.C. 469), as amended; 88 Stat. 174 (1974); Pub. L.
89-665, 80 Stat. 915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204
(1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. 3467
(1978), 94 Stat. 2987 (1980); Pub. L. 95-341, 92 Stat. 469 (42
U.S.C. 1996).
2. In Sec. 7.1, the first sentence in paragraph (a) is revised to
read as set forth at the end of this document.
3. In Sec. 7.3, paragraph (a)(6) is added and paragraph (i) is
revised to read as set forth at the end of this document.
4. In Sec. 7.4, the section heading and paragraph (a) are revised
and paragraph (c) is added to read as set forth at the end of this
document.
5. In Sec. 7.7, paragraph (b)(4) is added to read as set forth at
the end of this document.
6. In Sec. 7.13, paragraph (e) is added to read as set forth at the
end of this document.
7. Section 7.19 is revised to read as set forth at the end of this
document.
8. Reserved Secs. 7.20 through 7.30 in subpart B are removed and
new Secs. 7.20 and 7.21 are added to subpart A to read as set forth at
the end of this document.
George T. Frampton Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
Text of the Common Rule
The text of the common rule, as adopted by the agencies in this
document, appears below.
Sec. ____.1 Purpose.
(a) The regulations in this part implement provisions of the
Archaeological Resources Protection Act of 1979, as amended (16 U.S.C.
470aa-mm) by establishing the uniform definitions, standards, and
procedures to be followed by all Federal land managers in providing
protection for archaeological resources, located on public lands and
Indian lands of the United States. * * *
* * * * *
Sec. ____.3 Definitions.
* * * * *
(a) * * *
(6) For the disposition following lawful removal or excavations of
Native American human remains and ``cultural items'', as defined by the
Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L.
101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager
is referred to NAGPRA and its implementing regulations.
* * * * *
(i) Act means the Archaeological Resources Protection Act of 1979
(16 U.S.C. 470aa-mm).
Sec. ____.4 Prohibited acts and criminal penalties.
(a) Under section 6(a) of the Act, no person may excavate, remove,
damage, or otherwise alter or deface, or attempt to excavate, remove,
damage, or otherwise alter or deface any archaeological resource
located on public lands or Indian lands unless such activity is
pursuant to a permit issued under Sec. ____.8 or exempted by
Sec. ____.5(b) of this part.
* * * * *
(c) Under section (d) of the Act, any person who knowingly violates
or counsels, procures, solicits, or employs any other person to violate
any prohibition contained in section 6 (a), (b), or (c) of the Act
will, upon conviction, be fined not more than $10,000.00 or imprisoned
not more than one year, or both: provided, however, that if the
commercial or archaeological value of the archaeological resources
involved and the cost of restoration and repair of such resources
exceeds the [[Page 5261]] sum of $500.00, such person will be fined not
more than $20,000.00 or imprisoned not more than two years, or both. In
the case of a second or subsequent such violation upon conviction such
person will be fined not more than $100,000.00, or imprisoned not more
than five years, or both.
Sec. ____.7 Notification to Indian tribes of possible harm to, or
destruction of, sites on public lands having religious or cultural
importance.
* * * * *
(b) * * *
(4) The Federal land manager should also seek to determine, in
consultation with official representatives of Indian tribes or other
Native American groups, what circumstances should be the subject of
special notification to the tribe or group after a permit has been
issued. Circumstances calling for notification might include the
discovery of human remains. When circumstances for special notification
have been determined by the Federal land manager, the Federal land
manager will include a requirement in the terms and conditions of
permits, under Sec. ____.9(c), for permittees to notify the Federal
land manger immediately upon the occurrence of such circumstances.
Following the permittee's notification, the Federal land manager will
notify and consult with the tribe or group as appropriate. In cases
involving Native American human remains and other ``cultural items'',
as defined by NAGPRA, the Federal land manager is referred to NAGPRA
and its implementing regulations.
Sec. ____.13 Custody of archaeological resources.
* * * * *
(e) Notwithstanding the provisions of paragraphs (a) through (d) of
this section, the Federal land manager will follow the procedures
required by NAGPRA and its implementing regulations for determining the
disposition of Native American human remains and other ``cultural
items'', as defined by NAGPRA, that have been excavated, removed, or
discovered on public lands.
Sec. ____.19 Report.
(a) Each Federal land manager, when requested by the Secretary of
the Interior, will submit such information as is necessary to enable
the Secretary to comply with section 13 of the Act and comprehensively
report on activities carried out under provisions of the Act.
(b) The Secretary of the Interior will include in the annual
comprehensive report, submitted to the Committee on Interior and
Insular Affairs of the United States House of Representatives and to
the Committee on Energy and Natural Resources of the United States
Senate under section 13 of the Act, information on public awareness
programs submitted by each Federal land manager under Sec. ____.20(b).
Such submittal will fulfill the Federal land manager's responsibility
under section 10(c) of the Act to report on public awareness programs.
(c) The comprehensive report by the Secretary of the Interior also
will include information on the activities carried out under section 14
of the Act. Each Federal land manager, when requested by the Secretary,
will submit any available information on surveys and schedules and
suspected violations in order to enable the Secretary to summarize in
the comprehensive report actions taken pursuant to section 14 of the
Act.
Sec. ____.20 Public Awareness Programs.
(a) Each Federal land manager will establish a program to increase
public awareness of the need to protect important archaeological
resources located on public and Indian lands. Educational activities
required by section 10(c) of the Act should be incorporated into other
current agency public education and interpretation programs where
appropriate.
(b) Each Federal land manager annually will submit to the Secretary
of the Interior the relevant information on public awareness activities
required by section 10(c) of the Act for inclusion in the comprehensive
report on activities required by section 13 of the Act.
Sec. ____.21 Surveys and Schedules.
(a) The Secretaries of the Interior, Agriculture, and Defense and
the Chairman of the Board of the Tennessee Valley Authority will
develop plans for surveying lands under each agency's control to
determine the nature and extent of archaeological resources pursuant to
section 14(a) of the Act. Such activities should be consistent with
Federal agency planning policies and other historic preservation
program responsibilities required by 16 U.S.C. 470 et seq. Survey plans
prepared under this section will be designed to comply with the purpose
of the Act regarding the protection of archaeological resources.
(b) The Secretaries of the Interior, Agriculture, and Defense and
the Chairman of the Tennessee Valley Authority will prepare schedules
for surveying lands under each agency's control that are likely to
contain the most scientifically valuable archaeological resources
pursuant to section 14(b) of the Act. Such schedules will be developed
based on objectives and information identified in survey plans
described in paragraph (a) of this section and implemented
systematically to cover areas where the most scientifically valuable
archaeological resources are likely to exist.
(c) Guidance for the activities undertaken as part of paragraphs
(a) through (b) of this section is provided by the Secretary of the
Interior's Standards and Guidelines for Archeology and Historic
Preservation.
(d) Other Federal land managing agencies are encouraged to develop
plans for surveying lands under their jurisdictions and prepare
schedules for surveying to improve protection and management of
archaeological resources.
(e) The Secretaries of the Interior, Agriculture, and Defense and
the Chairman of the Tennessee Valley Authority will develop a system
for documenting and reporting suspected violations of the various
provisions of the Act. This system will reference a set of procedures
for use by officers, employees, or agents of Federal agencies to assist
them in recognizing violations, documenting relevant evidence, and
reporting assembled information to the appropriate authorities. Methods
employed to document and report such violations should be compatible
with existing agency reporting systems for documenting violations of
other appropriate Federal statutes and regulations. Summary information
to be included in the Secretary's comprehensive report will be based
upon the system developed by each Federal land manager for documenting
suspected violations.
[FR Doc. 95-1878 Filed 1-25-95; 8:45 am]
BILLING CODE 4310-70-P, 3410-11-P, 5000-04-P, 8120-01-P
